September 1, 2015

Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges
striking down prohibitions on same-sex marriage, the door may well be
open to the argument that bans on plural marriage should fall as well.
Baude takes as his cue the suggestion in the dissent of Chief Justice
John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.”

The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.”
One reason is because its author, Justice Anthony Kennedy, eschewed a
traditional equal protection analysis for the kind of soaring rhetoric
that has become a hallmark of his opinions in the area of individual
rights. Though the respect he accords the subject matter is notable, at
the end of the day, lower courts, state government officials and lawyers
need a good deal more to be able to understand the limits of our
constitutional commitment to equality.

Had Kennedy embraced a traditional equal protection analysis—as did the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health,
the first decision to overturn a same-sex marriage ban—the force of the
Chief Justice’s predictions about plural marriage likely would have
been blunted. To understand why, we must remember that, despite the fact
that it is fundamental, unlike nearly all other individual
constitutional rights—both explicit and implicit—the right to marry does
not exist unless the state provides for it. In other words, the
Constitution does not compel states to offer their citizens the
opportunity to enter into the legal relationship known as marriage. But
if a state chooses to offer its citizens that opportunity, it cannot
discriminate against parties who seek to enter into marriage absent some
legitimate basis for doing so.

As numerous federal and state courts have concluded, there is no
legitimate basis for excluding same-sex couples from marriage. Though as
a historical matter such couples were not eligible for marriage, that
is not a valid argument for continuing to prohibit them from marrying
when they otherwise satisfy the structural requirements for eligibility.
Those requirements contemplate two parties who have consented to be
married in the eyes of the law, so that they may both enjoy the
particular benefits that this binary legal relationship provides and
undertake the particular responsibilities it assigns. Nothing about the
inherent nature of those benefits and responsibilities disables same-sex
couples from entering into marriage.

The point here is that every state has limited marriage to a union of
two—and only two—parties. That binary relationship forms the structural
core of the institution of marriage. For a court to hold same-sex
couples equally eligible to enter into that relationship no more changed
the definition of marriage than would an order foreclosing a state from
declining to provide a particular opportunity to otherwise qualified
members of the opposite sex. See United States v. Virginia. On the other hand, for a court to order that a state must extend the opportunity to enter into marriage to any
combination of parties who desire it would take that court well beyond
the judicial role contemplated by current equal protection doctrine.

To illustrate, consider this hypothetical situation: suppose in response to Obergefell
the state of Pennsyltucky decided to get out of the marriage business
altogether—in other words, suppose the state decided not to offer its
citizens the opportunity to enter into any form of civil marriage. Could
a court order the state to create that legal relationship,
with all of the public and administrative costs associated with managing
it? No more than a court could order a state to provide funds to allow
aspiring but impoverished political candidates to run for office. It’s
equally unlikely a court would order a state that currently offers its
citizens the opportunity to enter into binary marriage—which is to say,
every state under current law—to admit any number of parties to that
relationship. Unlike the relief requested by the plaintiffs in Obergefell, such an order would in fact change the structural definition of marriage.

At bottom, multiple-party relationships simply aren’t the same as
two-party relationships. The binary relationship—and not the genders of
the parties to it—lies at the heart of marriage as the states have
defined it today. Plural marriage may come, but it will be the result of
legislative rather than judicial action.